GMO foods and labels: many angles, many squabbles

June, 2015

Eric F. Greenberg | Attorney-at-Law

The ongoing debates about genetically modified organisms in food, especially over label statements saying a food lacks GMOs, seem to be everywhere all at once. Issues like whether to require label disclosures, whether to prohibit voluntary label disclosures, and whether and how to certify a food is non-GMO continue to occupy legislators, regulators, and industry. Recent chapters include a state stepping out to try to require label disclosures and a surprising new voluntary government certification program.

To set the terms of the debate, let's ask this: Which of the following statements about label statements and GMOs would everyone agree with:

They are safe so a food label disclosing that they are present is not necessary.

They are not safe so a food label disclosing that they are present is necessary.

They are safe but a food label disclosing that they are present is desirable anyway.

As you may have guessed, you can't get everyone's agreement on any of these statements. Industry often likes the first statement, there doesn't seem to be much factual support for the second statement, and consumer advocacy groups often say they agree with the third statement. (For the record, I suspect they do question safety after all and that's really why they want label disclosures.)

In a recent chapter in the ongoing, multi-front squabble over GMOs, an apparently leaked letter about a voluntary U.S. Department of Agriculture labeling program has caused a fair amount of buzz.

In early May, several news outlets reported about a letter from USDA secretary Tom Vilsack to department employees detailing the new program that hadn't yet been publicly announced (still hadn't at press time). Under this program, according to the letter, manufacturers could, for a fee, voluntarily submit their food products for confirmation by USDA that the products do not contain GMOs. Once USDA verifies that fact, the packager could tout that the food is "USDA Process Verified." A program like that would be a government-sanctioned version similar to existing private certifications.

The department's Agricultural Marketing Service has used the Process Verified Program for some time to verify other characteristics of foods, such as "age, source, feeding practices, or other raising and processing claims," but this would be a new aspect of the program.

USDA regulates meat, poultry, and some egg products, and it pre-approves labels for such products, including claims of USDA Process Verified status. USDA cooperates with the US Food and Drug Administration, so presumably the two agencies will coordinate efforts when this special label statement is placed on labels of FDA-regulated foods.

Speaking of GMOs and voluntary programs, back in March the FDA said some genetically modified potatoes and genetically modified apples were safe, in response to submissions from two different companies.

FDA has said of its voluntary program, "During the consultation process, the FDA does not conduct a comprehensive scientific review of data generated by the developer. Instead, the FDA considers, based on agency scientists' evaluation, whether any unresolved issues exist regarding the food derived from the new plant variety that would necessitate legal action by the agency if the product were introduced into commerce. Examples of unresolved issues may include, but are not limited to, significantly increased levels of plant toxicants or anti-nutrients, reduction of important nutrients, new allergens, or the presence in the food of an unapproved food additive. The FDA considers a consultation to be completed when all safety and regulatory issues are resolved."

The potato company, J. R. Simplot Company, said these "potatoes have fewer black spots from bruising, stay whiter longer when cut or peeled, and have lower levels of naturally-occurring asparagine, resulting in less acrylamide when cooked at high temperatures." The apple company, Okanagan Specialty Fruits, Inc., modified apples to decrease discoloration associated with slicing or bruising.

As for label disclosures, though, FDA has said it's possible that these modified foods may have differences from traditional ones that are significant enough to require they be disclosed on food labels. This is because the Federal Food, Drug and Cosmetic Act specifically requires label disclosure of 'material,' or especially relevant, facts about the food, and prohibits any false or misleading statements on labels. FDA encouraged the potato and apple companies to consult with the agency to work out whether that's necessary for any given use.

Meanwhile, there's some contentious litigation underway in Vermont, where a law requiring GMO label disclosures was passed last year, then quickly became the subject of a legal challenge by the food industry, which claims the law violates their Constitutional free speech rights by compelling speech, and violates the Constitution's commerce clause and is pre-empted-overridden-by existing federal legal requirements. And a bill proposed in the US House of Representatives would allow but not require USDA to certify GMO label statements, and preempt any different state law requirements.

As is common with issues discussed in this space, the future developments are uncertain, though it's certain there will be many, and soon. PW

Usually packages are filled that way for good, and lawful, reasons

Eric F. Greenberg Attorney-at-LawNovember, 2017
Accusations that packages contain unlawful slack fill seem to be proliferating. They are increasingly being made within civil class action cases, on behalf of thousands or millions of individual consumers, rather than as enforcement actions by regulators. On behalf of packagers everywhere, please allow me to make this complex legal argument: Such accusations ain't really fair.

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